State v. Becker

256 Mont. 69

• Court: Montana Supreme Court
• Decided: October 23, 1992
• Docket: NO. DC-89-90
• Status: Published

Opinion

On July 16, 1990, the Defendant was sentenced to five (5) years for the offense of Felony Assault; the sentence is to be served consecutive to the term currently being served; the Court recommends that the defendant be transferred to the Washington State Penitentiary in Walla Walla, Washington.

On October 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by William A. Hritsco, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Upon reviewing the information in this case, Judge Boyd recused himself from this matter as he was the sentencing judge in a prior matter in Powell County. The Defendant was then given a choice to proceed with two judges or have the matter continued until a three member Board could be empaneled. The Defendant gave his consent to proceed with a two-member board.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of October, 1992.

The Defendant may apply for arehearingbefore athree-memberboardif he so chooses.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Mark P. Sullivan, Acting Member, Judges.

The Sentence Review Board wishes to thank William Hritsco, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.